The nation’s leading forum for conservative and libertarian legal scholarship.

Penn Law Prof. Waxes Nostalgic about Bygone Moral Regulation


Posted on November 11th, by Communications Editor in Event Memoranda, FedSoc. No Comments

Christopher Dillon Liedl, Guest Writer

University of Pennsylvania Law School Professor, Amy Wax, delivered a talk entitled “Education, Marriage, and Class in America” to the Harvard Federalist Society this past Tuesday, October 29. A graduate of both Columbia Law School and Harvard Medical School, Professor Wax has been a professor at Penn since 2001 teaching courses on social welfare law and civil procedure.

Opening her talk with a discussion of contemporary family trends, Professor Wax observed how the conception of marriage has shifted over the last half-century from a cornerstone model upon which a successful life together would be built, to a capstone model, added to an already successful life. This higher bar to marriage, coupled with a better educated female population, has led to a shortage of “marriageable” men. As a result, men are increasingly “playing the field” rather than settling down, particularly in the black community where 74% of births occur out of wedlock. Paradoxically, while the cornerstone model of marriage has raised expectations for marriage, she notes that expectations for childbirth seem to have decreased.

While the rate for out-of-wedlock births among whites remains far lower than among blacks, white America is far from homogenous across income and education levels. Rather, in stark contrast to the traditional model, working class whites are much more likely than affluent whites not to marry and experience much higher divorce rates. Yet at the same time, low-wage immigrants still marry at high rates. Professor Wax poses the question, “why is white America coming apart?”

Professor Wax’s ultimate answer to this question is not economic, but moral: moral deregulation has allowed what was once a society tightly clustered around shared values and norms to diverge into a society with stark differences in outcomes between the top and bottom. Even if all members of society didn’t subscribe to the social mores (such as those prohibiting extra-marital childbirth or multi-partner fertility), they generally adhered to them. In Professor Wax’s opinion, this was the “great equalizer.” With the advent of the sexual revolution, this uniform regulation was thrown into chaos with those individuals less able to regulate themselves and their sexual behavior falling behind.

Parallel divergence can be observed with regards to norms about weight gain and overeating. Professor Wax describes the norms some 50 years ago as revolving around cooked sit-down meals, prohibiting snacking between meals, and discouraging seconds. These norms now exist only within sub-cultures; there is no longer the dominant pan-culture enforcing these norms. The result is wild divergence in eating habits and the accompanying physical consequences, with those individuals less able to control themselves more likely to become obese.

Professor Wax points to individual differences in local vs. global (short-term vs. long-term) decision-making as a key driver for this divergence. Take the example of infidelity in a relationship and assume that infidelity has a higher local value while fidelity has a higher global value. However, given that there is no single rational actor but rather a series of individual actors with individualized local-global preferences, an individual actor may constantly prefer local over global. This raises the question of whether cheating is truly a lapse in judgment or a way of life.

Professor Wax indicated that there is a strong correlation between socioeconomic status and local-global decision-making. This is likely because advanced education and the demanding jobs that require such education promote and rely on global thinking. An illustrative example was soldiers discharged from the military and offered either an annuity or a lump sum at a high discount rate. Those discharged soldiers from lower socioeconomic backgrounds were overwhelmingly more likely to accept the lump sum.

In Professor Wax’s view, the responsibility for rebuilding these elements of civil society that have been deconstructed lies beyond the purview of government. State services like welfare will ensure that people won’t starve, but it won’t help them advance or improve. Ultimately, government involvement can only tear down, not build up this moral structure. Instead, the ruling elites who set the tone of national policy need to find the courage to say that some things are better than others, that fathers have certain responsibilities, and that we need to make decisions more globally than locally. However, this is unlikely to happen because elites are doing just fine as inequality grows and the rich get richer. Elite cultural institutions are alive and vibrant; it’s the poor churches that are dying as working class whites practically stop attending. This if further unlikely to happen because of a growing reluctance to stigmatize ex post certain states (e.g., single motherhood), leading to an inability to make ex ante distinctions. Citing Ross Douthat’s Bad Religion, Professor Wax criticized modern religions that offer only therapeutic validation without any call to higher, better behavior. If social institutions are to repair the damage done to American moral capital and keep the bottom from spiraling further away from the rest of society, then Professor Wax would say they need to embrace the role of insisting on behaviors that run counter to the current individualist norm.